Our Campaign for Constructive
Changes in the Law and the Criminal Justice System.
Over the course of the twelve or so months, following James’s murder, we took some very bitter lessons in the realities of our laws from within the criminal justice system, having witnessed the murder investigation, the crown court trial and the appeal of sentence in The Royal Courts of Justice, London. The foremost, is that ‘the system’ does not seek to uncover the truth, it merely takes available evidence gathered during the investigation, debates which bits are admissible in court, and prosecutes against that evidence; but only when the Crown Prosecution Service and their QC believe that, there is a ‘more than fifty percent chance’ of success.
This will always be an impossible pill to swallow, for any bereaved parent, as a result of violent crime, who needs to know the truth and to see that justice has been done for their loved one, above all else. This ‘revelation’ that was previously hidden to us, prior to that period of time, appears to be due to a combination of how our laws were originally formulated and have evolved, (or otherwise) over time, as well as significant under funding.
It is therefore naive to expect that the truth will be revealed, through prosecution of the law, as things stand. So, how can justice be expected to prevail in the absence of the truth and what, exactly, stands in the way of justice for victims and their families?
1. The ‘right to silence’ has been a central tenet of common law, within England and Wales, since the seventeenth century. The defendant was considered “incompetent” to give evidence at their trial and the ‘right’ was a reaction to the attempts of The Star Chamber, to force defendants to provide answers through torture. After 1912, suspects prior to trial, could also refuse to answer questions.
However, this right is not a single right in itself, but comprises of six immunities:
A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment, to answer questions posed by other persons or bodies.
A general immunity… from being compelled on pain of punishment, to answer questions the answers to which, may incriminate them.
A specific immunity, possessed by all persons under suspicion of criminal responsibility, whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment, to answer questions of any kind.
A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions, put to them in the dock.
A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
A specific immunity… possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.
“The Right to Silence” is described as ‘the protection given to a person during criminal proceedings, from adverse consequences of remaining silent’. It is also sometimes referred to as the privilege against ‘self-incrimination’. It is used on any occasion, when it is considered that the person(s) being spoken to, is under suspicion of potential criminal proceedings. The right to silence is inherent in the presumption of innocence within our laws.
Surely, someone’s innocence would be a compelling reason to speak up. We believe that the ‘right to silence’ is a key factor in perpetuating the concealment of the truth and all too frequently, enables the guilty to escape justice. Some of the six ‘immunities’ that comprise the right to silence, seem absurd to the lay person as they set the prosecution up for disadvantage.
The Russian playwright, Yevgeny Yuvtushenko wrote, “when the truth is replaced by silence, the silence is a lie.”
However, there are exceptions to the ‘right to silence’ currently:
The Regulation of Investigatory Powers Act 2000 s.49 and s.53 make it a criminal offence (with a penalty of two years in prison, or five years with regards to child sex to fail to disclose when requested the key to any encrypted information.
When a vehicle is alleged to have been involved in an offence, section 172 of the RoadTraffic Act 1988, as amended by section 21 of the Road Traffic Act 1991 enables the police to require the vehicle’s registered keeper, or any other relevant person, to provide information as to the identity of the vehicle’s driver. A special warning is given indicating that refusal to do so constitutes an offence in itself.
Under the Police Reform Act 2002 a person failing to provide a constable in uniform or designated person their name and address where they are suspected of having behaved or behaving in an anti-social manner is a criminal offence.
Given that murder is one of the most serious felonies that can be committed, (some of the above pale in comparison), we have to ask why is there not a statutory exception made in complex murder cases, particularly when considering ‘joint enterprise’, where an accused took part in an attack, that resulted in the death of a third party and is therefore a vital witness to the events? Surely it is reasonable, for that person to be compelled to ‘take the stand’ and to provide a full account of what happened and for it to be challenged in front of a jury. Furthermore, why should those charged with murder, be shielded from leaving the safety of the dock, to take the stand to face questions in front of a jury, even if they refuse to answer.
The legal stance is that, innocent persons may have many reasons to stay silent, which is undoubtedly true. So, let those reasons be heard behind closed doors, and allow the court to establish whether the reasons put are valid and not simply an opportunity to cynically manipulate the system, in order to escape justice.
‘Presumption of Innocence’.
During the last decade the presumption of innocence has been at the centre of a lively scholarly debate in England. The Human Rights Act 1998 transposed into English law art. 6(2) of the European Convention on Human Rights, stating that “[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” The presumption has two facets. It advances the general demand that “the treatment of the defendant throughout the criminal process […] be consistent, as far as possible, with his or her innocence. Used in this broad […] sense, the presumption of innocence underpins the whole range of rules intended to ensure fairness to defendants.” In addition, presuming the defendant innocent involve a particular requirement, that it is a necessary condition for conviction, that the state proves the defendant’s guilt.
The law speaks only of defending the fairness of the system for defendants. Surely, the ‘presumption of innocence’ is not a balanced position to take, both in the interests of fairness to both parties and in order to get to the truth. Logically and equitably therefore, there should be a presumption of ‘impartiality’ by the law.
‘Burden of Proof’.
Currently, the burden of proving the guilt of the defendant, lies on the prosecution, who must prove the particulars of the offence, beyond ‘reasonable doubt’. Proof ‘beyond a reasonable doubt’, means proof that is close to an absolute certainty. If the judge or jury is sure someone committed the crime, based on the evidence, that is sufficient.
Again, in order to be equitable, surely there should be a shared ‘burden’ to provide evidence of innocence or guilt, on the basis that the law and the jury stand impartial, until all evidence has been weighed and a decision reached.
NOTE: in certain defences to a criminal charge, the defence can find that a statute expressly states that a legal burden of proof rests on them to prove, on the ‘balance of probabilities’ that they are innocent. Why then, can this not be applied to very serious cases such as murder?
Joint enterprise is a doctrine of common law, dating back several centuries, that has been developed by the courts, to allow for more than one person to be charged and convicted of the same crime.
In case of R v Jogee, (appellant), 2016, The Supreme Court ruled in favour of Jogee, clarifying the requirement of the ‘mental element’ of ‘intention to assist or encourage’ the ‘principle party’ to commit the crime, which must be proved, when a defendant is accused of being a ‘secondary party’ to a crime. ‘Foresight’ is considered to be evidence, (albeit, not absolute), of intent to assist or encourage.
In the ruling, the court made the following comments:
“The mental element for secondary liability is intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime, and sometimes to a range of crimes, one of which is committed; either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but in other cases it takes the form of more or less spontaneous joining in a criminal enterprise; again, either will suffice. Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary, but if he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty.”
“The court makes clear what the present case(s) do not decide. First, they do not affect the law that a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is guilty at least of manslaughter. Manslaughter cases can vary in their gravity but may be very serious and the maximum sentence is life imprisonment. Secondly, they do not affect the rule that a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it. Thirdly, they do not alter the fact that it is open to a jury to infer intentional encouragement or assistance, for example, from weight of numbers in a combined attack, whether more or less spontaneous or planned, or from knowledge that weapons are being carried. It is a commonplace for juries to have to decide what inferences they can properly draw about ‘intention’ from an accused person’s behaviour and what he knew. “
Surely, there should be further considerations for courts and juries to draw inferences –
Whether the murdered person would have had a reasonable chance of survival, had there been just one attacker, ie. without the weight of numbers against him/her. The question also arises, whether the principle would have attacked at all, without the presence of the secondary and the security provided by weight of numbers.
What degree of influence that the primary accused may have had on the secondary accused, and vice versa, prior to and during a criminal act. Specifically, the particular circumstances surrounding sibling attackers and their distinct knowledge and understanding of one another.
The Criminal Justice System
Trial by a Jury of Peers. Surely ‘experts’ should be included within a jury, particularly in serious and complex cases. Those experts may include highly qualified and experienced behaviourists, psychologists, police and legal professionals, who could bridge the knowledge gap between the court and the jury and provide pertinent observations and insights to assist in their deliberations. We know that injustices do happen, not only when the innocent are convicted but equally, when the guilty are acquitted. The impact on the lives of those on both sides of the argument are devastating. The legal profession and government must acknowledge the fallibility of our justice system and address the issues at the heart of its shortcomings. As a country we must move past the ‘impasse’ of scholarly legal debate and construct a system that is truly impartial, one that is capable of being respected by all.